Discussion of current legal issues

One in seven children in Wisconsin and nearly 11% of the state's population - more than a half-million people - lived in poverty in 2007, according to a University of Wisconsin-Madison report (The First Wisconsin Poverty Report). According to the report, the three areas with the highest poverty rates for all individuals were Milwaukee County (17.3%); a 10-county region in northwestern Wisconsin near Lake Superior (14.4%); and Rock County (12.8%). Meanwhile, Waukesha County had the lowest poverty rate with 3.7%. Milwaukee County showed a wide variation in poverty rates, ranging from 40% in Milwaukee's central city to 5.4% around Brown Deer and Whitefish Bay. An estimated 158,245 Milwaukeeans lived in poverty. For a family of four with two adults and two children, the poverty threshold was an annual income of $21,954.In fact, Milwaukee emerged as America's fourth-most impoverished big city in 2009.Why should those numbers matter to you? Simply put, because the availability of jobs affects recidivism.In an article published in Journal of Public Economics (December 2016) by Crystal Yang of Harvard Law School entitled “Local Labor Markets and Criminal Recidivism,” found that "greater employment and wages in the county to which an offender returns upon release significantly decreases the risk of recidivism. The impact of higher wages on recidivism is larger in sectors that report being more willing to hire ex-offenders, and larger for both black offenders and first-time offenders. Wage effects are larger in states that legally restrict ex-offender eligibility for food stamps and welfare benefits, and employment effects are larger in states that prohibit private employers from discriminating on the basis of criminal history." See also, Pawasarat, John, "Ex-Offender Populations in Milwaukee County" (2009).ETI Publications, Paper 37 (released prisoners are among the most difficult labor force populations to serve and least likely to be successfully engaged in sustained employment); Joanna Y. Marks, Julia B. Isaacs, Timothy M. Smeeding, and Katerine A. Thornton, "Wisconsin Poverty Report: Were Antipoverty Policies Effective in 2009?' (May 2011).In summary, Professor Yang finds that:

During a typical economic expansion, wages for low-skilled jobs grow 4 to 5 percent. At the same time, recidivism falls by 2.3 to 4 percent.

A growth in low-skilled wages by 1 percent is associated with a 0.43 to 0.46 percent decline in the risk of returning to prison.

Males and younger offenders are more likely than women and older offenders to return to prison; black offenders are more likely to return than white or Hispanic offenders. Those with higher education levels are less likely to return to prison.

Black offenders are more likely than white offenders to respond positively to an increase in wages.

Prisoners convicted of theft are more likely to return to prison than those convicted of violent crimes or drug-related offenses.

Prisoners who are freed by a mandatory parole are more likely to return to prison than those who are released at the recommendation of a parole board.

Recidivism among prisoners released during the Great Recession of 2007 to 2009 increased by 5.5 to 9.6 percent. Some states like California released inmates during the recession to reduce overcrowding. But because of the tough job market at the time, the move “may have impeded the ability of ex-offenders to find employment, potentially increasing future recidivism and endangering public safety.” The association is especially apparent because wages in two industries that hire a number of former inmates – construction and manufacturing – fell at the time.

Yang calculates that 55,000 inmates released during the Great Recession were at risk of returning to prison within three years. With an average prison stay of over a year, “these offenders may entail over $1.6 billion in costs, in addition to decreases to public safety.”

If your family is caught up in the prosecution of child pornography because your juvenile child was sexting another juvenile, you should immediately contact Paul Ksicinski at 414-530-5214 or pksicinski@gmail.com. He is over 20 years of experience in criminal defense and has represented juveniles around the state on charges because they were sexting.

Child pornography laws are meant to prevent the sexual abuse of children necessarily which is necessarily present in the possession of child pornography. In Wisconsin, the relevant ‘child pornography’ statute, Wis. Stat. § 948.12, seeks to criminalize someone who "possesses or accesses in any way with intent to view any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct." WIS JI-CRIMINAL 2146A CHILD PORNOGRAPHY: POSSESSION OF OR ACCESSING A RECORDING — § 948.12(1m). In footnote viii to that jury instruction, it is explained that pursuant to State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676 (1991), " [M]ere nudity is not enough —the pictures must display the child's genital area . . . the photographs must be sexually suggestive; and . . . the jurors may use common sense to determine whether the photographs were lewd."

Prosecuting two juveniles for sexting each other represents a prosecution based upon mere nudity with no exploitative element in violation of Petrone. Sexting is the digital adolescent self expression without the exploitative sexually suggestive circumstances that are implicit in the production of conventional child pornography. Sexting entails the subject taking a photograph of him/herself, or voluntarily asking a friend to take the photograph for him/her, and therefore lacks the exploitative element implicit in the laws prohibiting child pornography. To charge sexting as child pornography, a prosecutor must blatantly disregard the obvious purpose and intent of the laws enacted to protect children from those who would exploit them. Sexting may not be the best way society wants juveniles to explore their sexuality so some form of therapy pursuant to a deferred prosecution is appropriate. The draconian response of seeking a juvenile delinquency conviction (which may or may not involve juvenile sex registration) is not appropriate.

Moreover, sexting between two children does not implicate the compelling child protection justification prompting criminalization of child pornography. Legislatures and courts stress the harm that minors suffer when they are used in the creation of pornographic material, yet it is precisely this exploitative harm that is absent from the sexting scenario here in which an adolescent voluntarily takes a photograph of herself (or asks another to do so) and shares the photograph with a boyfriend. It should be noted this case does not represent any involvement of an adult using the pictures for sexually suggestive purposes. Nor does this case does not implicate the possible prosecution of anyone who widely disseminates a sext-message on social media such as Facebook, Instagram, etc.

The United States Supreme Court emphasized the harm to the “physiological, emotional, and mental health of the child” when categorically exempting child pornography from the First Amendment protection that adult pornography receives. New York v. Ferber, 458 U.S. 747, 758 (1982); U.S. v. Goff, 501 F.3d 250, 259 (3d Cir. 2007)(citing Ferber for the harm caused to children in child pornography). The Court has stated the reason possession of child pornography is prohibited is to “protect the victims of child pornography . . . to destroy [the] market for the exploitative use of children.” Osborne v. Ohio, 495 U.S. 103, 109 (1990) (emphasis added).

In Ashcroft v. Free Speech Coalition, the Court reaffirmed that it is the harm to children used in the production of child pornography that is the root of the Ferber exception. 535 U.S. 234, 241-42 (2002); see Stephen F. Smith, Jail for Juvenile Child Pornographers?: A Reply to Professor Leary, 15 Va. J. Soc. Pol’y & L. 505, 519 (2008). In Free Speech Coalition, the Court rejected arguments supporting the prohibition of pornography that uses “virtual” children or adults who appear to be minors, as inconsistent with Ferber’s child protection justification. Free Speech Coalition, 535 U.S. at 249. The government argued that though no children were sexually abused in the making of the images, there remained a potential harm to children based on the possibility that the images might cause pedophiles to molest children or be used by pedophiles to groom children. Id. at 251-52. The Court dismissed this as “indirect” because the harm “does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Id. at 250, 253. The Court characterized the interests in prohibiting child pornography as “anchored . . . in the concern for the participants [in the production], . . . the ‘victims of child pornography.’” Id. at 250 (quoting Osborne, 495 U.S. at 110) (emphasis added).

In the practice of sexting, there are no exploited victims as there are in conventional child pornography – the youth voluntarily take and share text message photographs of themselves with their peers – and any prospective harm to youth would be “indirect” injury and dependent on “unquantified potential for subsequent criminal acts,” and therefore squarely outside the Ferber exception to First Amendment protection.